The essay examines the role of emotions in arbitral decision-making and challenges the traditional assumption that arbitrators should act as purely rational and emotionally detached decision-makers. Drawing on insights from behavioral sciences and psychology, the author shows that decision-making processes are shaped by cognitive mechanisms such as heuristics and biases, which affect judges, arbitrators, and lawyers alike. Arbitration, therefore, cannot be understood as a purely rational activity immune from psychological influences. The article situates this discussion within the interdisciplinary field of “law and emotions”, which questions the classical dichotomy between reason and emotion. Contemporary scholarship demonstrates that emotions are not merely disruptive forces but integral components of human cognition, influencing how individuals interpret information, evaluate credibility, and reach decisions. Applying these insights to arbitration, the essay argues that emotions can play a constructive role in legal reasoning. Certain “background” or “epistemic” emotions, such as curiosity, doubt, and intellectual commitment, support knowledge-seeking processes and contribute to more attentive and balanced deliberation. Emotions also influence persuasion in adversarial proceedings, shaping how arbitrators process arguments and narratives presented by counsel. Finally, the essay explores strategies of emotional regulation. While the traditional model emphasizes the suppression of emotions in order to preserve neutrality, research suggests that acknowledging and engaging with emotions, through techniques such as cognitive reappraisal and emotional introspection, can improve both the quality of decision-making and professional performance. The article ultimately argues that arbitration should move beyond the myth of the dispassionate arbitrator and recognize emotions as an unavoidable and potentially valuable element of arbitral decision-making.
Rojas Elgueta, G. (2025). Arbitration and Emotions: Beyond the Myth of the Dispassionate Arbitrator. In T.E.F. FRANCESCO CARDARELLI (a cura di), IL VALORE DEL DISSENSO. Riflessioni con Vincenzo Zeno-Zencovich (pp. 1567-1582). Roma : RomaTrE-Press.
Arbitration and Emotions: Beyond the Myth of the Dispassionate Arbitrator
Giacomo Rojas Elgueta
2025-01-01
Abstract
The essay examines the role of emotions in arbitral decision-making and challenges the traditional assumption that arbitrators should act as purely rational and emotionally detached decision-makers. Drawing on insights from behavioral sciences and psychology, the author shows that decision-making processes are shaped by cognitive mechanisms such as heuristics and biases, which affect judges, arbitrators, and lawyers alike. Arbitration, therefore, cannot be understood as a purely rational activity immune from psychological influences. The article situates this discussion within the interdisciplinary field of “law and emotions”, which questions the classical dichotomy between reason and emotion. Contemporary scholarship demonstrates that emotions are not merely disruptive forces but integral components of human cognition, influencing how individuals interpret information, evaluate credibility, and reach decisions. Applying these insights to arbitration, the essay argues that emotions can play a constructive role in legal reasoning. Certain “background” or “epistemic” emotions, such as curiosity, doubt, and intellectual commitment, support knowledge-seeking processes and contribute to more attentive and balanced deliberation. Emotions also influence persuasion in adversarial proceedings, shaping how arbitrators process arguments and narratives presented by counsel. Finally, the essay explores strategies of emotional regulation. While the traditional model emphasizes the suppression of emotions in order to preserve neutrality, research suggests that acknowledging and engaging with emotions, through techniques such as cognitive reappraisal and emotional introspection, can improve both the quality of decision-making and professional performance. The article ultimately argues that arbitration should move beyond the myth of the dispassionate arbitrator and recognize emotions as an unavoidable and potentially valuable element of arbitral decision-making.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
